In Re: Estate of Timothy S. Cook ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 25, 2019
The Court of Appeals hereby passes the following order:
A19E0033. In Re: Estate of Timothy S. Cook.
Constance Cook Riley, a sister of the decedent Timothy Cook, filed this
emergency motion from an order of the Probate Court of Cobb County dismissing
Riley’s notice of appeal filed in the probate court as untimely. In that notice of appeal
dated December 21, 2018, Riley sought to appeal a September 21, 2018 order
appointing an administrator, and a November 5, 2018 order denying Riley’s
subsequent motion for reconsideration. The probate court dismissed the notice of
appeal as untimely because it was not filed within 30 days of the September 21, 2018
order, as required by OCGA § 5-6-38, and the motion for reconsideration does not
extend the time for filing a notice of appeal. See Bell v. Cochran, 244 Ga. App. 510,
511 (536 SE2d 187) (2000).
In this emergency motion, Riley requests that we (1) mandate the probate court
produce the records requested in the December 21, 2018 notice of appeal; (2) order
the probate court to suspend execution of any of its prior orders pending further
direction from this Court; and (3) schedule oral argument in this case. Based on the
requested relief, it appears Riley is seeking mandamus relief. “Generally, the superior
courts of this state have the power, in proper cases, to issue process in the nature of
mandamus, prohibition, specific performance, quo warranto, and injunction, and
hence the need to resort to the appellate courts for such relief by petition filed in the
appellate courts will be extremely rare.” Brown v. Johnson, 251 Ga. 436, 436 (306
SE2d 655) (1983). However, this is not one of the extremely rare instances in which
this Court need exercise its original mandamus jurisdiction. See Gay v. Owens, 292
Ga. 480, 482- 483 (2) (738 SE2d 614) (2013). See also Ga. Const. of 1983, Art. VI,
Sec. I, Par. IV. Until such time as Riley has pursued relief in superior court and
obtained a ruling thereon, there is no basis for this Court to exercise jurisdiction. See
Brown, supra.Alternatively, to the extent that Riley is seeking to appeal the probate court’s
dismissal of her untimely notice of appeal, such an order is not subject to a direct
appeal. See Lamb v. Salvation Army, 301 Ga. App. 325, 327 (1) (687 SE2d 615)
(2009) (explaining that an order dismissing a properly filed appeal is directly
appealable, but an order dismissing an improperly filed appeal is not subject to a
direct appeal).
Consequently, without a proper notice of appeal before this Court, we lack
jurisdiction to take any action in this case. See Couch v. United Paperworkers
Intern.Union, 224 Ga. App. 721, 721 (482 SE2d 704) (1997) (“The proper and timely
filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the
appellate court.”) (citation and punctuation omitted). We note that the proper remedy
if Riley still wishes to appeal is to request the probate court to grant an out-of-time
appeal. Accordingly, the emergency motion is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/25/2019
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.